Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” ...
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Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials.Less

Cicero's Law : Rethinking Roman Law of the Late Republic

Published in print: 2016-10-01

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials.

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the ...
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This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the development of Scots law through the major legal thinkers of the Enlightenment, essays on Roman law and miscellaneous essays on the literary and philosophical traditions within law. Both volumes combine together and reprint a selection of some of the many articles and essays published by Cairns over a distinguished career in legal history. It is a mark of Cairn's international eminence that much of his prolific output has been published outside of the UK, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate.Less

Enlightenment, Legal Education, and Critique : Selected Essays on the History of Scots Law, Volume 2

John W. Cairns

Published in print: 2015-08-01

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the development of Scots law through the major legal thinkers of the Enlightenment, essays on Roman law and miscellaneous essays on the literary and philosophical traditions within law. Both volumes combine together and reprint a selection of some of the many articles and essays published by Cairns over a distinguished career in legal history. It is a mark of Cairn's international eminence that much of his prolific output has been published outside of the UK, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate.

Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is ...
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Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is it possible to analyse law through Foucauldian lenses if Foucault himself claimed (albeit cursorily) that law, in modernity, has been colonised by other disciplines and ousted from the locus of power? Building on Foucault’s ideas about power, freedom, and subjectivity, the present book tackles this problem through a critical genealogy of the philosophico-political ideas at the basis of modern law, delineating the historical emergence of the implicit regulative conditions of our legal present. The book proposes that modern law and modern forms of power – which Foucault termed biopolitical because they sort, train, and tame persons and populations with the aim of normalizing society – developed symbiotically and that, to the extent that modern law establishes the existence of a universal legal subject, law’s functioning is made possible by the homogenization of society through normalising practices. We are however fast moving towards the absolute limit of this normalizing complex. As normalising strategies are progressively unable to homogenise a social body which is increasingly composed by “fluid” subjects, modern law faces two interconnected challenges – a normative one (how can normalizing laws properly reflect the wills of a mass of differentiated fluid individuals?) and a functional one (how can normalizing laws effectively regulate such new protean social body?) – which put into question the very foundations of our legal discourse.Less

A Foucauldian Interpretation of Modern Law : From Sovereignty to Normalisation and Beyond

Jacopo Martire

Published in print: 2017-08-01

Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is it possible to analyse law through Foucauldian lenses if Foucault himself claimed (albeit cursorily) that law, in modernity, has been colonised by other disciplines and ousted from the locus of power? Building on Foucault’s ideas about power, freedom, and subjectivity, the present book tackles this problem through a critical genealogy of the philosophico-political ideas at the basis of modern law, delineating the historical emergence of the implicit regulative conditions of our legal present. The book proposes that modern law and modern forms of power – which Foucault termed biopolitical because they sort, train, and tame persons and populations with the aim of normalizing society – developed symbiotically and that, to the extent that modern law establishes the existence of a universal legal subject, law’s functioning is made possible by the homogenization of society through normalising practices. We are however fast moving towards the absolute limit of this normalizing complex. As normalising strategies are progressively unable to homogenise a social body which is increasingly composed by “fluid” subjects, modern law faces two interconnected challenges – a normative one (how can normalizing laws properly reflect the wills of a mass of differentiated fluid individuals?) and a functional one (how can normalizing laws effectively regulate such new protean social body?) – which put into question the very foundations of our legal discourse.

The first of two volumes, this collection of essays on Scots law represents a selection of the most cited articles published by Professor John W. Cairns over a distinguished career in legal history. ...
More

The first of two volumes, this collection of essays on Scots law represents a selection of the most cited articles published by Professor John W. Cairns over a distinguished career in legal history. It is a mark of his international eminence that much of his prolific output has been published outside of the United Kingdom, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate. This collection covers the foundation and continuity of Scots law from sixteenth- and seventeenth-century Scotland through the eighteenth-century influence of Dutch Humanism into the nineteenth century and the further development of the Scots legal system and profession.Less

Law, Lawyers, and Humanism : Selected Essays on the History of Scots Law, Volume 1

John W Cairns

Published in print: 2015-08-01

The first of two volumes, this collection of essays on Scots law represents a selection of the most cited articles published by Professor John W. Cairns over a distinguished career in legal history. It is a mark of his international eminence that much of his prolific output has been published outside of the United Kingdom, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate. This collection covers the foundation and continuity of Scots law from sixteenth- and seventeenth-century Scotland through the eighteenth-century influence of Dutch Humanism into the nineteenth century and the further development of the Scots legal system and profession.

Does there exist a Logos capable of limiting the very power of God? This question closely relates an inquiry arising in classical Greek philosophy to the theological knowledge originating in Jewish ...
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Does there exist a Logos capable of limiting the very power of God? This question closely relates an inquiry arising in classical Greek philosophy to the theological knowledge originating in Jewish biblical exegesis. Two thoroughly unrelated worlds, one would say, yet a historical nexus between them existed, that created by Christianity, which has marked the destiny of our West. As Leo Strauss has masterfully shown, Christianity has been for two thousand years, despite its many inner contradictions, something like an interface between two hitherto unrelated worlds: Greek philosophy and biblical revelation. By reformulating them and turning them on their heads, it has shaped an entire civilization: our Western civilization, which is now drawing to a close. Thus, never has it been as appropriate as the present moment to come to grips with our opening question about the “limits of God”, or about the original laws of logic and ontology that somehow “limit” God’s very actions, since it arises from the profound need – prior to St. Paul unthinkable in concrete terms – to form a link between these two radically different worlds. Our West, with its devastating philosophical rationalism, its systematic Christian-Enlightenment repudiation of the Spinozist-Nietzschean concept of potency, from its very inception hinged on this question of knowledge of a law before God and above God. Today we must acknowledge that – precisely because of what this question, taken to its extreme consequences, implies – it was destined from its origins to end.Less

On the Idea of Potency : Juridical and Theological Roots of the Western Cultural Tradition

Emanuele Castrucci

Published in print: 2016-08-01

Does there exist a Logos capable of limiting the very power of God? This question closely relates an inquiry arising in classical Greek philosophy to the theological knowledge originating in Jewish biblical exegesis. Two thoroughly unrelated worlds, one would say, yet a historical nexus between them existed, that created by Christianity, which has marked the destiny of our West. As Leo Strauss has masterfully shown, Christianity has been for two thousand years, despite its many inner contradictions, something like an interface between two hitherto unrelated worlds: Greek philosophy and biblical revelation. By reformulating them and turning them on their heads, it has shaped an entire civilization: our Western civilization, which is now drawing to a close. Thus, never has it been as appropriate as the present moment to come to grips with our opening question about the “limits of God”, or about the original laws of logic and ontology that somehow “limit” God’s very actions, since it arises from the profound need – prior to St. Paul unthinkable in concrete terms – to form a link between these two radically different worlds. Our West, with its devastating philosophical rationalism, its systematic Christian-Enlightenment repudiation of the Spinozist-Nietzschean concept of potency, from its very inception hinged on this question of knowledge of a law before God and above God. Today we must acknowledge that – precisely because of what this question, taken to its extreme consequences, implies – it was destined from its origins to end.